Traci DeVette Griggs | March 19, 2020 | SHARE: 
Hobby Lobby and the Little Sisters of the Poor won U.S. Supreme Court cases in recent years after they challenged—on religious and moral grounds—the Affordable Care Act’s so-called “contraceptive mandate,” which required all employers to provide contraception and abortifacient drugs in their employee health plans. The Trump Administration recently sought to protect similar organizations and companies who object to this mandate by issuing a broad religious and moral exemption through the U.S. Department of Health and Human Services (DHHS), but several states sued to block this exemption from going into effect.
The March for Life is another organization that has been fighting against this contraceptive mandate, and it recently filed with the U.S. Supreme Court, urging the court to uphold the DHHS rules granting them and other religious and moral objectors exemption from the mandate. John Bursch is Vice President of Appellate Advocacy and senior counsel with Alliance Defending Freedom, who is representing the March for Life. Bursch joins Traci DeVette Griggs on this week’s Family Policy Matters radio show and podcast to discuss the March for Life’s case, and why pro-life advocates seem to be stuck in an endless cycle of court battles.
“Organizations who oppose abortion are continually forced to go to court over and over and over again,” says Bursch, “because the pro-abortion proponents just won’t stop until everyone gives in and allows abortion to happen everywhere.”
What is so troubling about this fight, according to Bursch, is “We have a long history in our country that goes back hundreds of years of respecting those who have different views from ourselves and not coercing them to act in ways that violate their own conscience.” But that is exactly what abortion activists and pro-abortion politicians are doing.
“The whole exercise really has nothing to do with anybody’s health care […] It has everything to do with sending a political message that everyone needs to get on board with the abortion industry’s agenda or otherwise they’re going to be drummed out of society.”
Tune in to Family Policy Mattersthis week to hear John Bursch expand on this fight between pro-life organizations and the radical abortion industry.
TRACI GRIGGS: Thanks for joining us this week for Family Policy Matters. After Hobby Lobby and the Little Sisters of the Poor won their legal challenges recently, many Americans thought that particular battle for religious freedom was over. Well, apparently not. You may remember these employers challenged the Affordable Care Act’s requirement that all employers provide coverage for contraception and abortifacient drugs in ttheir employee healthcare plans. It appears the fight continues.
Last month, the March for Life Education and Defense Fund filed a petition with the U.S. Supreme Court asking it to uphold the U.S. Department of Health and Human Services rules aimed at protecting organizations with religious or moral objections to the Obama-era so-called contraceptive mandate.
John Bursch is Vice President of appellate advocacy and senior counsel with Alliance Defending Freedom, and he is one of the ADF attorneys working with us on this case for March for Life.
John Bursch, welcome to Family Policy Matters.
JOHN BURSCH: Thank you so much, Traci. I’m delighted to be here.
TRACI GRIGGS: Well, it can be somewhat mind-boggling for those of us who are not involved in these cases on a daily basis, to understand why is it necessary to continue to fight and then regain ground that we apparently had already won. Give us some context before we jump into the details of this case, if you would, on what’s going on here in this fight for religious liberty in America.
JOHN BURSCH: Well, the big problem is that those who want to continue to push a pro-abortion agenda, that includes freely available abortifacients for everyone everywhere at any time, is that they just won’t sit still. They’re continuing to push buttons and trying to enforce their agenda on everyone else. So, we start with the Affordable Care Act being passed. It said nothing about abortifacients or artificial contraception being required in employer health plans, but it delegated to the Department of Health and Human Services the ability to say what employer health plan should include, and they did require those types of things. That’s how we ended up with the so-called contraceptive mandate.
After years in the courts, and we can talk about what happened there in a little more detail, the current Administration issued a very broad exemption, a religious and moral exemption. So, for those who have religious beliefs, but also those like March for Life who are non-religious but still have a moral belief that abortion is wrong, they have an exemption from all of this. And rather than just letting it go and recognizing that we should allow people to have different points of view on abortion, several states led by Pennsylvania and California, sued to invalidate the accommodation. And even while all this is taking place in the U.S. Supreme Court, we have states like California and the State of Washington, which under state law are trying to compel not only religious organizations and nonreligious organizations with moral objections to abortion, but even churches themselves to require abortifacients in their health plan. So, organizations who oppose abortion are continually forced to go to court over and over and over again, because the pro-abortion proponents just won’t stop until everyone gives in and allows abortion to happen everywhere.
TRACI GRIGGS: Well, that’s very interesting background. So now we come to March for Life, and this is an organization setup specifically to fight abortion and they’re having to now fight abortion in their healthcare, right? That seems absurd as well.
JOHN BURSCH: Correct. Their very reason for existence is to prevent anyone from having abortions because they believe that it takes human life. And it’s silly to require a group, like March for Life, to provide abortifacients in their healthcare plan because anybody who works for March for Life shares that same value of protecting life from conception until a natural death. It’s not like their employees would even need to take advantage of it, and it’s offensive to them that they would be required to include something like this in a health plan.
March for Life was one of the early groups like the Little Sisters, that had sued as they went up the chain to the Supreme Court over the original exemption, which recall was limited to churches and no one else. The first round of litigation resulted in the Hobby Lobby decision. Hobby Lobby was the first signal from the U.S. Supreme Court that a majority of justices were not going to stand for this kind of bullying by the federal government. But that case was limited to small, closely-held, for-profit corporations like Hobby Lobby. It said that the government could not infringe on their religious liberty by requiring them to provide abortifacients or artificial contraception if they had a religious objection to that. The litigation then continued for everybody else, the Little Sisters of the world and the March for Life entities of the world, who were not businesses but still had religious or moral objections.
That ended up in the first Little Sisters of the Poor case in which the Supreme Court recognized that there was a valid constitutional interest at stake here, but it didn’t tell the federal government how it needed to resolve that. It just sent it back and essentially ask the parties to figure it out. And under the previous Administration, they weren’t able to work it out. The government allowed groups like Little Sisters or March for Life, to send in a piece of paper and say, “We don’t want to provide abortifacients or artificial contraception,” but the government would then turn around and take that paper and go to the administrator of the health plan and still force the health plan to provide it. So even though the Little Sisters and March for Life weren’t providing it directly, they were being coerced through this piece of paper to allow their healthcare plans to be used to provide the very things that they objected to; which wasn’t a solution for anybody. It looked like it was going to be litigated all the way to the Supreme Court again, until the Trump Administration Health and Human Services agency comes out with this very broad exemption, which for the very first time makes clear that any religious or moral objector doesn’t have to comply with the program. And then of course, Pennsylvania and California immediately sued to invalidate it. Unfortunately, lower federal courts agreed with that, and that’s how we end up back at the U.S. Supreme Court yet again.
TRACI GRIGGS: Do you think they actually hope that they will win the day on this?
JOHN BURSCH: I think they do. And their goal is to eliminate that broad exemption and force these groups to litigate, one-by-one, in the courts and to hope that liberal judges will agree with the pro-choice states and force these groups to continue providing abortifacients. And what’s so sad about this is that there’s not even evidence that there’s a single person out there who wants abortifacients in their employer health plan who isn’t able to get them through some government-funded program. You would think that between the Little Sisters and March for Life, and the many other groups that have brought these lawsuits, they would be able to identify a single individual plaintiff who lost access to abortifacients who actually wants it, who could sue in their own name, and they haven’t been able to find a single one. So, the whole exercise is really nothing about anybody’s health care, it’s nothing about the obligations of employers, it has everything to do with sending a political message that everyone needs to get on board with the abortion industry’s agenda or otherwise they’re going to be drummed out of society.
TRACI GRIGGS: This is a cultural clash, apparently, and the pro-life side certainly is not going to give, so there’s not a resolution in sight. We should just understand we’re going to have to continue to fight this one, I suppose.
JOHN BURSCH: Yeah, unfortunately that’s the case. You can fight it in the courts, you can also fight it politically because the last Administration would rather litigate against nuns who help elderly poor people, whose employees don’t want abortifacients. You know, they would rather fight them in court over that issue than offer even the modest exemption that they were asking for. Those same officials would rather force March for Life, which as we’ve discussed, it’s whole purpose for being is to oppose abortion. They’d rather force them to provide abortion to employees who don’t want it, than to just let it go.
You can see the same thing happening and playing out in state governments as we saw happen at the national level. In California, for instance, they have a Democrat executive branch. This isn’t something that the legislature did, but it’s executive officials, just like the federal officials did with the Affordable Care Act. And they’re the ones who are insisting that even churches that have a religious objection to abortion, must include abortifacients as part of their health plans. There are actually several cases pending against the State of California in the Ninth Circuit Court of Appeals on that issue right now. So, the election in California that put that administration in place, that certainly has consequences for everyone who holds pro-life views.
Certainly, as you’re going to the ballot box, everyone needs to consider carefully where the candidates stand on these issues because it’s much more than just making sure that abortion is widely available. It’s a political agenda of trying to force it down everyone’s throat. And now the good thing is that through the court system—although these groups tend to lose often at the district court and court of appeals levels—a majority of Supreme Court justices has consistently ruled in favor of their conscience, whether that’s religious or moral objection, and recognize that there’s liberty interests at stake.
TRACI GRIGGS: You know, pro-lifers are quite often ridiculed for being one-issue voters, but this is not one issue, is it? I mean all of the issues that are tied up with abortion, they span a much wider range than just one issue, don’t they?
JOHN BURSCH: Oh absolutely, because we’re talking about religious and moral objections to something. We have a long history in our country that goes back hundreds of years of respecting those who have different views from ourselves and not coercing them to act in ways that violate their own conscience. And it’s the same government officials at the state, and previously at the federal level, who would be willing to violate people’s conscience rights with respect to abortion that would impose the same kind of requirements or restrictions when it comes to marriage beliefs, or adoption, or pretty much any issue that you can imagine. It’s all about true freedom and liberty, and the states that are pushing this agenda are the same ones that are trying to crush that freedom everywhere they go.
If you think even just about the abortion debate specifically, it was in the immediate aftermath of Roe vs. Wade, that there were a slew of bills passed at the federal and state levels to protect those who had a conscience objection. We had the Hyde Amendment to prevent taxpayer dollars from going to abortion at the federal level. We had federal and state acts that ensured that doctors who had moral objections to abortion wouldn’t have to participate in them. And today it’s going exactly the other way. It’s not just you have to have abortifacients in your health plan, but if you’re a Catholic doctor who has a strong religious objection to abortion, you must perform the abortion surgery or you’re going to be kicked out of the hospital. The very last Democrat presidential candidate who still supported the Hyde Amendment, Joe Biden, changed position once the nominating process began. And so, in that field of more than 20 candidates, there wasn’t a single one who was willing to stand up for the rights of individuals who think that abortion is murder, to not have their tax-payer dollars go towards abortions.
So, no matter what the issue is, whether it’s abortion or whether it’s something else, it’s all about respecting individual liberty and conscience rights, we’ve moved into a new phase of American politics where those rights are not being respected anymore. And so, certainly elections have consequences.
TRACI GRIGGS: Well, we’re just about out of time for this week. Is there anything else we need to know about the March for Life case? When can we expect there to be a resolution, and where can people go to get more information?
JOHN BURSCH: For starters, everyone needs to understand that the Court has already accepted a pair of cases brought by the Trump Administration and the Little Sisters of the Poor, out of the Pennsylvania set of cases, so they are going to be deciding this issue. In addition, March for Life is joining its voice to the chorus, along with the Trump Administration from the California case. But we expect that the decision in the Pennsylvania case will control both. I would expect to see the oral arguments for that set of cases take place in the fall, that there’ll be a decision next spring or early summer. And so certainly by the end of next June we should have definitive resolution on this issue. Then we’ll just have to wait and see what courts do with the lawsuits where states like California are using their own state law to enforce these very same oppressive laws against churches, among others.
If you’re looking for more information, I strongly encourage you to visit the Alliance Defending Freedom website, which can be found at adflegal.org. We’ll have a continual news update on this case as it develops over the next year.
TRACI GRIGGS: Well, John Bursch, Vice President of Appellate Advocacy and senior counsel with Alliance Defending Freedom, thank you for joining us today on Family Policy Matters.
JOHN BURSCH: My pleasure. Have a great day.
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